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versão On-line ISSN 2411-7870versão impressa ISSN 1021-545X

Fundamina (Pretoria) vol.20 no.2 Pretoria 2014

Theophilus and the "incorporeal" heir

Bernard H. Stolte

Professor of Byzantine Law, University of Groningen

ABSTRACT

In his paraphrase of Inst. 2,16 pr. Theophilus explains pupillaris substitutio and the phenomenon of the heres who is heir in name only. He describes the latter as τό άσώµατον όνοµα της κληρονοµίας, an expression that seems to be unique to him and does not draw on comparable Latin terminology.

Those who are interested in the readership of Justinian's Institutes in sixth-century Constantinople could do worse than to read the so-called Paraphrasis Institutionum of Theophilus.1 In this text, which is the only directly transmitted report of an elementary2 course given in the law school of Constantinople, we get a glimpse of the way Justinian's prima legum cunabula were explained to the cupida legum iuventus of the time.3

It is not necessary to elaborate on the nature and value of the Paraphrasis here. By far the greater part of the Paraphrasis is a translation into Greek of the Institutiones, but there are many passages in which the antecessor inserts explanations of the text.4 These explanations give an idea of what apparently was considered helpful for a better understanding of the text. They often occur at the beginning of a title, in order to introduce the transition from one subject to another. One such case has drawn my attention and has given rise to this note.

Titles 15 and 16 of Book II of the Institutes deal with testamentary clauses containing provisions for cases in which the intended heir will not be able or will not wish to accept the inheritance: if this comes to pass, the clause calls a "substitute" heir to the inheritance. Title 15 concerns "ordinary substitutions", title 16 the special case of "substitutes for children".5 The text of the Institutes is fairly concise, and Theophilus must have felt that his audience stood in need of a few explanatory words. The result is a principium of this title that differs considerably from the Institutes. Theophilus puts a stronger emphasis on the difference between ordinary and pupillary substitutions. If the heir is an extraneus, ordinary substitutions are possible in many cases, of which he gives examples, but if the heir is a child of the testator, such an ordinary substitution is possible "in one case only" (8), namely, if the son in potestate dies before his father. This is explained by positing the opposite situation: suppose the father dies before the son, no substitution is possible, for the son becomes at once heir to his father, "not even on abstention losing the incorporeal name. For the incorporeal name of inheritance, once attached to a man, passes with difficulty to another" (12-14; we shall return to these words in a moment). For this particular case another substitution has been created, the pupillary one, "which is applicable in the case of children of our own, and not only in the case of children, but also of persons subject to our power, and not only of persons subject to our power, but also of sui under puberty" (thus Murison's translation at 15-17, but see below).

Having thus narrowed down the circumstances in which a pupillary substitution would take effect, Theophilus gives the standard form of the pupillary substitution: "Let my son be heir; but, if he become heir and die under puberty, let So-and-so be his heir" (18-19). He thereupon paraphrases the words of the Institutes, but again intercalating explanations when he translates Inst. 2,16, pr., lines 6-10, pointing out that these words are in part an ordinary substitution (uulgaria), in part a pupillaria, so that the whole clause could be termed a uulgaropupillaria one (22).

Of course these are not the only additions to the Justinianic text. Already, a few paragraphs further down, for example, we read aprotheoria, a preliminary remark.6 The beginning of title 16 of book II, however, seems particularly illustrative of Theophilus' method when approaching a new subject. Two points seem worth making. One concerns substance, the other terminology.

First, nowhere else, not even in Gaius, do we find so accessible an explanation of the pupillaris substitutio7. Its didactic form helps to explain Justinian's text. (We may remember that Theophilus had cooperated in drafting the Institutes.8) Reading again our edited version of Murison's translation (at 355, lines 18-20) it appears that we should perhaps have clarified his words at this point. As they stand, they could be taken to suggest that the repetition of ού µόνον ... άλλα και ... widens the concept παις. This is not what is meant: on the contrary, these qualifications define the concept by adding requirements a παις must meet before coming within the scope of the clause. I would now propose to continue after "which is applicable in the case of children of our own" with "who are not only our children, but also subject to our power, and not only subject to our power, but also sui under puberty".

Second, the terminology is unusual, to say the least. The expression άσώµατον ὄνοµα τῆς κληρονοµίας is, as far as I know, unique to Theophilus; nevertheless it does not seem to have attracted much comment.9

The adjective ασώµατος is standard for incorporalis. A hereditas is a res incorporalis, as Theophilus had explained at Inst. 2,2,2: Ασώµατα έστιν άτινα έν δικαίω συνίσταται, οἷον κληρονοµία. This should not be read without referring to § 1, where the distinction between incorporalis and corporalis is made:

Things, then, are either corporeal or incorporeal. (A corporeal thing is a thing that is known by a name and is also capable of being touched and seen, as land, a house, clothing, a slave. An incorporeal thing is a thing that is known only mentally and is not capable of being touched or seen.)

On the one hand, Theophilus echoes the well-known distinction also drawn in Gaius II 14, with which he was of course familiar, both from having taught Gaius' textbook and from incorporating that passage into Justinian's Institutes. Much has been written on the roots of the distinction in Greek philosophy, which I am not going to review here.10 On the other hand, Theophilus' own contribution to the definition of res corporalis is that it is not only capable of being touched, as in the Institutes, but also "known by name". Theophilus' words have not passed entirely unnoticed,11 but have received little attention. The emphasis on όνοµα smacks of the Stoic theory of language, where όνοµα is that part of a phrase that indicates a special quality (ίδίαν ποιότητα, οίον Διογένης, Σωκράτης, as we read with Diogenes Laërtius).12 The early sixth-century grammarian Priscian, who taught Latin in Constantinople and whom Theophilus may have known, comes close when distinguishing nomina denoting a communis qualitas and those indicating a propria qualitas, but says nothing about (in)corporalis.13 Another possible source could be the Athenian philosopher L. Calvenus Taurus, contemporary and friend ("noster Taurus") of Gellius, who is on record as having written a Περὶ σωµάτων καὶ ἀσωµάτων, which would have corresponded with αἰσθητά and νοητά respectively.14

Whatever the philosophical antecedents may have been, for Theophilus the res incorporalis is known only mentally (νῷ µόνῳ γνωρίζεται, as opposed to ὀνόµατι γνωρίζεται). This opposition renders the combination ἀσώµατον ὄνοµα all the more surprising. Murison translates it as "incorporeal name", a literal translation that employs two words, for which combination there is no parallel expression such as incorporale nomen in Latin legal language, let alone together with hereditatis. The literal translation, therefore, does not solve the problem of what Theophilus means, or rather, why Theophilus uses these words to express a phenomenon that is known in secondary literature as nudum nomen heredis, dating, if I am not mistaken, from the end of the sixteenth century.15 It indicates the quality of being heir only in name, for example when someone sells an inheritance, or when a suus heres refuses the inheritance. In both cases the original heir remains heres, but does not benefit, and is protected against any liabilities, from the estate.

But nudum is not ἀσώµατον, and heres is not κληρονοµία; nomen is not always ὄνοµα, but let us leave that for the moment. First nudum. In legal usage, nudus indicates that something is missing, which normally one would expect to be present. Theophilus elsewhere uses the standard translations for nudus, which are γυµνός and ψιλός:

Ψιλός is probably more generally found in legal language. In Inst. 2,16 pr., however, Theophilus does not use either because here he is not trying to point out that the heir is not a real heir but an heir in name only, without the positive and negative economic consequences of that position. Rather, he emphasises that the mere quality of being heres is difficult to discard in the case of a child in potestate who is suus heres. It is this same aspect of a suus heres that he discusses elsewhere, too:

- At Inst. 2,19,5 (388, 10-11) Theophilus repeats virtually the same words, although the text of the Institutes does not use a similar expression: again he uses the expression to elucidate the text.

- Inst. 3,1,5 treats the case of a paterfamilias who has been condemned for perduellio after his death: he then is unable to have a suus heres, since he is succeeded by the fiscus. The text ends with sed potest dici ipso iure esse suum heredem, sed desinere. Here Theophilus (490, 10-12) is able to point this out as an exception to the rule: ίδοὺ τοίνυν θέµα, ἐν ᾧ τὸ ἀσώµατον ἐµπαγέν τινι τῆς κληρονοµίας ὄνοµα ἀφίσταται αὐτοῦ: "Here, then, is a case in which the incorporeal name of the inheritance first attaches to a man and then passes away from him" (491).

- An abbreviated version, and therefore a less clear example, is Inst. 2,23,3 (456, 3). It notes that (is qui restituit [hereditatem]) nihilo minus heres permanet), which Theophilus translates as οὐδεν ἧττον µένει κληρονόµος, but adds by way of explanation ἐπειδὴ τὸ ἀσώµατον αὐτῷ προσεπάγη: "nevertheless he remains heir, because the incorporeal right is vested in him" (457). Theophilus uses here τὸ ἀσώµατον without ὄνοµα τῆς κληρονοµίας, but undoubtedly means the same.

Common to these cases is the ὄνοµα τῆς κληρονοµίας. What is a κληρονοµία? Let us return to Theophilus' own definition, where he is not just translating:

Now, rights are incorporeal things; for instance, an inheritance. What, then, is an inheritance? A right created in certain modes, apprehended only mentally, and constituting me universal owner of another man's estate.

This is not the definition we read in D. 50,16,24 (Gaius 6 ad ed. prov.) and its version in Bas. 2,2,22:

There can be no doubt that Theophilus was familiar with this definition. If we compare the two, Theophilus is emphasising the quality of being heir, whereas Gaius is speaking about its consequence, the succession. In the case under discussion, where the suus heres, while remaining heir, nonetheless is not entitled to nor liable in the estate of the deceased paterfamilias, he still has the quality of heres (κληρονοµία), but does not receive the estate, hereditas (κληρονοµία). To express the difference between the two meanings of κληρονοµία, Theophilus defines the former as τὸ ἀσώµατον ὄνοµα τῆς κληρονοµίας, the "name" or quality of heres, which is ἀσώµατον, literally "without a body", "abstract". It is appropriate that it should qualify κληρονοµία and not κληρονόµος. For Theophilus κληρονοµία here is not the hereditas as a res incorporalis, but the quality of being heres, its consequence normally - but not in this case - being succession, and thus the acquisition of a res incorporalis, the hereditas (κληρονοµία). In my view, Theophilus deliberately avoids the term "right" (δίκαιον) for the quality of being heres. I would propose to translate τὸ ἀσώµατον ὄνοµα τῆς κληρονοµίας as "the abstract quality of heir", which fits the context of what Theophilus discusses at Inst. 2,16 pr., for which the translation "incorporeal" is less suitable. One might of course object that incorporeal and abstract are the same, namely without a body (corpus,σῶµα); so why not maintain "incorporeal"? My answer would be that it helps to do justice to Theophilus' distinction between κληρονοµία as a quality and as a res incorporalis. A res incorporalis is still a res, that is an "asset of economic value, and it is in this wide sense that Gaius and Justinian speak of the law of things".16 That is precisely what Theophilus did not mean at Inst. 2,16 pr.

For the wider context of Theophilus' words we must, of course, look at contemporary Byzantine sources. This is not the place for a full exploration of the semantic field of ἀσώµατον, but one case is too interesting not to mention. In Bas. 11,1,63 we find a rather extensive paraphrase of C. 2,3,2, a rescript of Severus and Caracalla of 202. If the vendor of a hereditas is able to prove that the buyers have undertaken voluntarily to defend actions on the part of creditors of the hereditas, that vendor will enjoy the protection of a tacit pactum. In the text of the Basilica the possible liability of the vendor is motivated by the words ὡς ἔχοντος ἔτι τὸ ἀσώµατον τῆς κληρονοµίας, "since he still has the quality of heres'", an explanation not explicitly given in the Codex. The manuscript Coislinianus gr. 152 contains a scholion (no. 7 = BS 310,6) in explanation of άσώµατον and quotes:

There is a rule that says that the "incorporeal right of inheritance" passes only with difficulty to another. He said, "only with difficulty", because, if the buyers of the inheritance of their own free will wish to enter upon the inheritance and let themselves be troubled for its sake, from that moment the person who has first become the heir no longer can be troubled.

The scholion has been written in the margin of other scholia and is not inscribed with a name, but obviously has been taken from Theophilus. Theoretically, both could have drawn on a common source, but in my view that is extremely unlikely. The text uses τὸ ἀσώµατον, turning the adjective into a noun, and the scholion has τὸ ἀσώµατον δίκαιον. In other places in the Basilica and their scholia the same variety may be observed, though an independent τὸ ἀσώµατον is more frequent. It is my impression that the sharp distinction drawn by Theophilus was lost in later ages, and is perhaps unique to him even in the sixth century. In any case, Theophilus' phrase remains an isolated example in Byzantine legal texts.

To sum up, we may distinguish three meanings of κληρονοµία in Theophilus: the quality of being heir, the succession, and the estate. The first of these is not found in the Latin equivalent hereditas, and it is this that is meant in the expression τὸ ἀσώµατον ὄνοµα τῆς κληρονοµίας.